Persuasive Litigator

Don't Wear The Black Hat Lightly: You're Not the Bad Guy Because You're at Fault, You're at Fault Because You're the Bad Guy.

By Dr. Ken Broda-Bahm -

 
So, let's say you are BP, and after the Deepwater Horizon spill you are facing several thousand claims in the courtroom.  You are potentially more worried by one big claim in the court of public opinion:  you're seen as a bad actor.  That perception certainly has less to do with any causal analysis of the failure of the blowout preventer, and more to do with beliefs that the company seems to be finger-pointing, didn't come off well before congress, or even gets too many tax breaks.  As much as a company in litigation might strive to cultivate a better image, there is also the temptation to say, "Who cares?  We don't expect them to love us. Just to focus on the claims and listen to the evidence." 

The problem, according to soon to be released research, is the public and members of juries don't assign blame independent of assessed credibility.  Being the party wearing the black hat isn't so much a consequence of being found at fault, it is a precursor.  Blame is often a result of low opinions.  Let's take a quick look at the research, and also at what defendants can do about it if there is a risk they'll be the ones wearing the black hats in the courtroom. 

Adapt Your Scientific Testimony to Jurors' Skeptical Ears

By: Dr. Ken Broda-Bahm -

In his recent State of the Union address, President Obama followed the common pattern of giving attention and applause lines to nearly every issue on the national agenda.  But there was one issue that received no mention at all:  climate change.  The absence, noted by many commentators, extended even to areas where it would have been natural to mention the environment.  The President's "clean energy" initiative, for example, was touted based on its ability to create jobs and bolster competitiveness, rather than its ability to help the environment. 

This decision was no doubt the result of polling showing the American public is very skeptical of the science behind global warming.  Recent surveys, for example, showing that nearly half of all Americans consider the threat of global warming to be "greatly exaggerated," likely contributed to advisers' view that the best overt reason to protect the environment is...to put America back to work.  Despite a recorded 97-98% consensus within the scientific community, a large proportion of the citizenry simply doesn't believe the science behind climate change.  This skepticism, however, isn't a passing political phenomenon, but is instead part of an observed tendency on the part of many to take scientific conclusions with more than a few grains of salt.  Some individuals, including members of your jury, will elevate personal beliefs and experiences over scientific conclusions, no matter how well those conclusions are supported.  This skepticism, explored in some recent research conducted by our group and others, has some important implications for expert witnesses looking for the best ways to convey scientific conclusions to their jury. 

Test the Waters, but Don’t Assume that Bias is Forever: Deepwater Hasn’t Translated to Deep Trouble for Energy Defendants

By: Dr. Shelley Spiecker

 

 

 
Six months after the public was riveted to press coverage of the oil spill in the Gulf, impact on energy defendants has been less doomsday than feared.  In fact, this is one of the better times in the past 10 years to be an energy defendant in front of a jury.  Why?  Much as the spill itself appeared to dissipate more rapidly than expected, the tide of public opinion has drifted away from concern over the environmental practices of energy companies, and toward concern over the economy.  A recent Pew Research Center survey found the economy was identified as Americans’ top policy priority for 2011 by 87% of respondents.  The public is also focused on resentment of what many perceive as a failure of government to fulfill the promises made in the 2008 election.

Take It From Rep. Joe Barton: Don’t Be A ‘Friend Of The Devil’

by: Dr. Ken Broda-Bahm

Here is a litigation lesson from the world of politics.  The Vice President, along with many other Americans, described it as ‘incredibly insensitive, outrageous, and astounding,’ but last Thursday, in the U.S. House of Representatives, Texas Congressman Joe Barton was facing BP CEO:

“I’m ashamed of what happened in the White House yesterday.  I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown — in this case a $20 billion shakedown.  … I’m not speaking for anybody else, but I apologize.”

Hours later, Representative Barton was taking back that statement in order to deal with the ensuing uproar from both Democratic and Republican circles.  

“I apologize for using the term ‘shakedown’ with regard to yesterday's actions at the White House in my opening statement this morning, and I retract my apology to BP.”

What we see here is an unsuccessful attempt by Rep. Barton to reframe the issues.  On the 59th day of the continuing Deep Horizon oil spill, and two days after President Obama’s oval office speech asking BP to set up a $20 billion dollar fund in order to deal with the consequences of the oil spill, the Congressman seemed to sense a chance to focus the public’s attention on something other than the flowing oil, suffering wildlife, and spoiled beaches.  The President’s demand was unprecedented, and on the heels of an unpopular health care reform law and in the run up to a climate bill being successfully framed as an “energy tax,” the public might have seemed primed to accept Barton’s characterization of the fund request as yet another example of an outrageous power grab by the Democratic President. 

So why did Barton’s gambit fail so badly?  Simply because the party that would have benefitted from this re-framing, BP, is so profoundly unsympathetic in the public eye, and that made Representative Barton look like a friend of the devil.  This failed reframing exercise carries some important reminders for litigators. 

Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions

by: Dr. Shelley Spiecker

Evidence shows that false documents were notarized by employees and submitted to a state regulatory agency.  Evidence also shows that record-keeping was inaccurate; nevertheless, these matters cannot be addressed due to the parameters in the jury instructions. (Female, 55 year-old)

 

This quote, spoken by a juror after serving in a two month oil and gas production trial, typifies feedback I am receiving from jurors in a wide array of different cases in venues across the country.  While jurors are troubled by evidence they see at trial, and possibly even want to find against a defendant, they are adhering to the confines of jury instructions like never before.

 

Take, for example, another completely different case – a high-profile child abuse and murder case.  A majority of jurors, having sat through this approximately two month trial, echoed the dominance of the jury instructions in their verdict.  In this case, the instructions benefitted both the prosecution and defense.  Specifically, due to the wording of the criminal negligence instruction, jurors were guaranteed to find the defendant guilty of some wrong doing.  Alternatively, the definition of child abuse was the key factor that unified a divided jury.  Initially, jurors relied heavily on their own definitions of what they perceived to be child abuse.  After several jurors focused the panel on the legal definition, jurors came to unanimous agreement – convicting on over 25 counts of child abuse and acquitting on the remaining – for failure of the evidence to meet the legal criteria.